Fertility Fraud: The U.S. Is Experiencing An Explosion Of Legislation. And That’s A Good Thing

More and more cases of fertility fraud have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Direct-to-consumer DNA kits have changed our reality. The wall of secrecy that was once behind conception and parenting — including adoptions, affairs, and the use of donor eggs, sperm, and embryos — is crumbling. One major facet of this reckoning with the truth has been the stark realization that many, many doctors were using their own sperm, a form of fertility fraud, to “treat” their unknowing patients.fertility fraud

Sometimes this practice was in place of “anonymous donor” sperm; sometimes, it was actually in place of the spouse or partner’s sperm. It’s pretty gross to think about. But even grosser is the complete lack of accountability for the doctors who must have known of the ethical and moral shortcomings of their actions.

The Justice System Has Been Failing Us

A doctor using his own sperm to impregnate a patient, without her knowledge or consent as to the source of the sperm, must be a crime, right? Or at least a pretty solid tort – fertility fraud? For many states, you guessed wrong. More and more cases of those doctors’ egregious practices have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Take, for example, the case of Donald Cline, formerly a licensed medical doctor in Indiana. In one of the most notorious cases of fertility fraud in the United States, DNA tests have shown Cline to have used his sperm in unknowing patients, resulting in at least sixty children. When the betrayed patients and offspring sought legal remedies against Cline, they were unsuccessful. After all, the patients had consented to Cline inseminating them with sperm. Cline did plead guilty to two charges of obstruction of justice, after lying to officials about using his own sperm with patients. But that, to most victims, was not sufficient.

Time To Change The Law

Since current law has been failing the victims, many have sought, and are currently seeking, to change the law. State by state, if necessary. Last year, two successful bills were passed. One was in Indiana, unsurprisingly, as ground zero of the Cline fiasco. Another was in Texas, where Eve Wiley led the charge. (Listen to this podcast where Wiley and her believed-donor tell the twisting and fascinating tale of uncovering the truth of Wiley’s genetic history.) In Texas, without a civil cause of action due to the state’s recent tort reforms, and without a viable criminal cause of action to charge him, Wiley’s “doctor daddy” is still actively practicing medicine even today. That’s crazytown.

Now other states are following suit, and closing the legal loopholes that existed for doctors to take advantage of their patients in this most intimate of areas. And while I doubt that as many doctors are so casually using their own sperm these days, there are certainly modern horror stories involving assisted reproduction, including that of a staff member at a Utah clinic swapping out countless sperm samples with his own.

The states currently making progress in this area include my own home state of Colorado with HB20-1014 (Go, Representative Kerry Tipper!), Nebraska with LB 748, Ohio with HB 486, and Florida with SB 698. Other states, as well, appear poised to introduce their own fertility fraud legislation. While the proposed laws vary, they are consistent in their goals of ensuring or clarifying that this type of behavior by trusted medical professionals is not acceptable and not legal, and providing a path forward for justice.

AboveTheLaw.com, by Ellen Trachman, February 12, 2020

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Paying gestational carriers should be legal in all states

Every year, hundreds of thousands of babies are born in the U.S. using assisted reproductive technologies, including the use of gestational carriers, a multibillion-dollar industry that is controversial and largely unregulated.

One of the controversies involves the use of paid gestational carriers, women who agree to carry a fertilized embryo, created from another woman’s egg, give birth, and give the baby to its parents. This is different from tradition (or genetic) surrogates, who provide both their own eggs and their own wombs. Gestational surrogacy now constitutes 95% of all surrogacy in the U.S.gestational carriers

State laws about arrangements for gestational carriers vary widely and are in flux. This kind of surrogacy is currently allowed in 10 states; prohibited but with various caveats and additional legal proceedings in 30; practiced with potential legal obstacles and inconsistent outcomes in five; practiced but with legally unenforceable contracts in two and prohibited in three. Several of the 40 states with real or potential legal hurtles require that couples be married and heterosexual, or allow surrogates to choose at any point to keep the baby.

Commercial surrogacy first gained wide attention in the 1980s through the Baby M case. Elizabeth Stern had multiple sclerosis and feared that pregnancy would worsen it. Through a newspaper ad, she and her husband connected with Mary Beth Whitehead, who agreed to carry a fetus for them as a traditional surrogate, providing both an egg and a womb. But after giving birth, Whitehead decided to keep the child. A New Jersey court awarded the Sterns custody of Baby M, but banned all such future surrogacy contracts.

Since then, practices have changed and the use of gestational carriers has grown dramatically. In many states, however, prospective parents need to travel to other states, like California, to avoid legal obstacles. Some seek surrogates in the developing world, which has its own set of problems.

Competing proposed bills in New York state highlight the conflicts involved in gestational surrogacy.

In June 2019, the New York state Senate voted to legalize gestational surrogacy. The pushback was swift and strong. Noted feminist Gloria Steinem argued strongly against the proposal, raising concerns that poorer women of color would disproportionately serve as gestational carriers. She also pointed out that the bill would require surrogates to be state residents for only 90 days, which could prompt human traffickers to bring women to New York to serve as surrogates. The State Assembly then rejected the proposal. Lawmakers are now considering at least two different revised versions of the bill — one from Gov. Andrew Cuomo and one from the bill’s original sponsor — that address these criticisms.

I believe the state should legalize gestational surrogacy, providing it includes protections to avoid the problems Steinem highlighted.

In the debates in New York, as well as those in other states, both sides have been arguing in the relative absence of data, without acknowledging this deficit. In fact, the limited data available so far do not suggest that women become gestational carriers because of financial distress, nor do the demographics reflect racial disparities.

StatNews.com, by Robert Klitzman, February 12, 2020

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Putin says he won’t allow for LGBTQ families or marriages in Russia

Putin told reporters that he’s considering a constitutional amendment that would ensure that all parents of children “will be dad and mum.”

Russia’s President, Vladimir Putin, said to a pool of reporters on Monday that he will not allow same-sex adoption or support marriage equality  “as long as [he’s] president” – currently set to be at least to 2024.russia gay

The comments were made at a press conference regarding a state-approved commission that will consider potential changes to the Russian constitution. Putin is supposedly trying to shape Russia’s laws and constitutionality in a way that would allow him to maintain power after his current term ends.

A reporter asked if a proposal that would “add a line in the constitution defining marriage as a union between a man and a woman” would be considered. Putin replied, “We need only to think in what phrases and where to do this.”

While the question was about same-sex marriage, Putin’s response focused on ruling on the potential of LGBTQ families being legal parents.

“As far as ‘parent number 1’ and ‘parent number 2’ goes, I’ve already spoken publicly about this and I’ll repeat it again,” Putin said, “as long as I’m president this will not happen. There will be dad and mum.”

French Senate passes bioethics law allowing lesbians to artificially procreate

The bill passed by the French Senate is watered down but still extremely transgressive.

The French Senate adopted the draft bioethics law currently under discussion in that body by a relatively small margin of 10 votes on Tuesday. One of its most spectacular elements, the legalization of access to artificially assisted procreation for single women, including those in lesbian relationships, was confirmed, as well as the widening of possibilities for research on human embryos. Other articles of the law were modified by the Senate, which canceled some of its more shocking propositions.French Senate

Although the higher chamber in France still has a right-of-center majority, the text, which remains deeply transgressive, obtained 153 votes in its favor, while 143 senators voted against and 45 abstained. The voting was not uniform right and left — 97 of the 144 “Les Républicains” mainstream right-wing senators rejected the law presented by Emmanuel Macron’s left-wing government, while 25 voted for the text, thus bearing responsibility for its adoption.

The presidential party “La République en marche” (LREM), created for the last presidential election and not very strong in the Senate, was itself divided: six of its 24 senators voted against the text.

Almost all the 348 senators were present, a sign that the revision of France’s bioethics laws is being taken seriously. The first such law was adopted in 1994 and was already transgressive because it legalized artificial procreation and embryo selection.

From the start, it was decided that the bioethics law would be revised every five years in order to take medical and scientific progress and new techniques into account. As a matter of fact, the laws were revised over larger intervals. Each time, new possibilities for embryo research, pre-implantation diagnosis, and other such transgressions were added.

The draft bioethics law now being discussed has been substantially amended by the Senate and will therefore return before the National Assembly, probably in April. Laws are adopted definitively without a second reading in France only when adopted by both chambers in exactly the same terms.

Lifestienews.com, by Jeanne Smits, February 7, 2020

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Fresh Eggs For IVF Offer Slightly Better Birth Outcomes

Using fresh donor eggs for in-vitro fertilization (IVF) provides a small but statistically significant advantage in birth outcomes compared to frozen donated eggs, research finds.

The national study in the journal Obstetrics & Gynecology was the largest head-to-head comparison of the two IVF approaches, measuring the likelihood of a good perinatal outcome, defined as a single baby without prematurity and with a healthy birth weight.fresh eggs

“Our study found that the odds of a good birth outcome were less with frozen than with fresh, but it was a small difference,” says lead author Jennifer L. Eaton, medical director of assisted reproductive technology and director of the Oocyte Donation Program at the Duke Fertility Center.

“From a clinical standpoint, given that frozen eggs have many benefits such as ease, cost, and speed, the decision to use fresh or frozen donor eggs should be made on an individual basis after consultation with a physician,” Eaton says.

Eaton and colleagues, including senior author Alex Polotsky of the University of Colorado Advanced Reproductive Medicine, studied three years of data from the Society for Assisted Reproductive Technology. Nearly 37,000 IVF attempts were analyzed, including 8,381 (22.7%) that used frozen eggs and 28,544 (77.3%) using fresh.

Controlling for factors such as the quality of fertilized eggs and the age of both mother and donor, the researchers found that fresh eggs resulted in a good perinatal outcome in 24% of fertility attempts compared to 22% of the attempts with frozen eggs. Implantation, clinical pregnancy, and live birth rates were all significantly higher among the women using fresh eggs vs. frozen.

“As IVF with donor oocytes has become standard treatment for women with decreased egg supply or advanced reproductive age, there has been an increased demand for donor oocytes, making frozen eggs an attractive option,” Eaton says. “In general, IVF with frozen donor eggs is cheaper and faster than with fresh donor eggs.

Fututiry.org by Sarah Avery-Duke, February 7, 2020

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The Number of Employers Who Offer Fertility Benefits is on the Rise

Fertility benefits rank high on the list of valuable benefits that make recruiting top talent, retaining valuable employees, and reducing turnover easier. Providing coverage for family building options has been shown to increase employee retention and loyalty.

According to a recent FertilityIQ survey, 68 percent of millennials consider fertility benefits when choosing an employer, and 9 out of 10 employees with fertility issues will switch jobs for benefits.fertility benefits

This scenario was very true for millennial, Katie Goad and her husband Adam. They had an 8-year-old daughter and wanted to expand their family. After giving birth to her first child, Katie had surgery that meant she would have to undergo in vitro fertilization (IVF) in order to have another child.

Lacking insurance for IVF, Katie was determined to expand her family without going into debt in the process, so she explored her employment options and discovered that Starbucks offered benefits to cover IVF, even to hourly, frontline workers. Starbucks is revered for being among the first to provide fertility benefits to hourly and part-time employees.

“I was honest with them in my interview about what my goal was, and what my intentions were,” Goad said in a recent interview with Benefit News.

She landed the job and started working as a part-time barista.

In a recent survey, FertilityIQ, author of the extensive Family Builder Workplace Index, found that 73 percent of fertility patient respondents felt more gratitude toward their employer because of fertility benefits, 61 percent said it made them feel more loyal, and 53 percent said it influenced them to stay with a particular employer longer.

“In this tight labor market, millennials are entering the family building years and flooding the workforce. Companies eager to recruit top talent know that offering fertility benefits, paid parental leave, and flexible schedules fosters a great sense of loyalty,” said Patty Stull, Chief Marketing Officer of SGF.

Once Katie qualified for health benefits through Starbucks, she began fertility testing and treatment under the care of Dr. Mark Perloe at Shady Grove Fertility Atlanta.

Virginia Senate approves bill to prevent surrogates from being forced to abort multiples

The Virginia Senate unanimously approved a bill Tuesday that would prevent surrogates from either being required to or prohibited from aborting multiples in their surrogacy contracts.

The bill passed through the House of Delegates in January, and the Virginia Senate proposed an amendment that will see it sent back to the House for final approval.new Va. surrogacy

With the amendment from the Virginia Senate, the bill reads: “Any contract provision requiring [or prohibiting] an abortion or selective reduction is against the public policy of the Commonwealth and is void and unenforceable.”

TheJurist.com, by Angela Mauroni, February 5, 2020

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